Press Releases

Appeals Court to Consider 'First Sale' Doctrine for eBay Seller

Seattle - On Monday, June 7, at 9 a.m., a federal appeals court in Seattle will hear oral argument in a case where the Electronic Frontier Foundation (EFF) is fighting to uphold an eBay seller's "first sale" right to resell promotional CDs that he buys from secondhand stores.

Troy Augusto was sued by Universal Music Group (UMG) three years ago for 26 auction listings for promo CDs. At issue was whether the "promotional use only, not for sale" labels on those CDs trump Augusto's right to resell materials that he owns -- a right guaranteed by copyright law's "first sale" doctrine.

In 2008, the district court handed the victory to Mr. Augusto, but UMG has appealed that ruling. At Monday's hearing at the U.S. Court of Appeals for the 9th Circuit in Seattle, EFF cooperating counsel Joseph C. Gratz of the San Francisco law firm Durie Tangri LLP will argue the case, urging the court to uphold the "first sale" principle against self-serving "not for resale" labels on compact discs.

Also on the court's calendar on Monday are two other important first sale cases. In Vernor v. Autodesk, the panel will consider whether an eBay seller has the right to resell software purchased second-hand. In MDY v. Blizzard, at issue is whether World of Warcraft players own the software they purchase to play the game, and whether that entitles them to use the software in ways the creator does not approve of.

San Francisco - A federal judge in San Francisco has quashed a baseless subpoena aimed at outing an anonymous online critic of Pennsylvania corporation USA Technologies after the Electronic Frontier Foundation (EFF) successfully argued that the First Amendment shields the identity of anonymous speakers who engage in lawful speech.

"All too frequently, companies turn to the courts in misguided attempts to chill speech and 'out' their critics, believing that those critics lack the resources or will to defend themselves," said EFF Senior Staff Attorney Matt Zimmerman. "The First Amendment ensures that vigorous debates about matters of public concern can continue unabated, a fact that the court correctly recognized."

EFF represents Yahoo! user "Stokklerk," who criticized USA Technologies and its CEO, George Jensen, Jr., on a Yahoo! message board, drawing attention to plummeting stock prices, high compensation rates for executives, and a consistent lack of profitability. Other anonymous posters had similar complaints.

In response, USA Technologies filed a lawsuit in the Eastern District of Pennsylvania alleging that the statements violated federal securities regulations, because they were part of a "scheme" for the authors to "enrich themselves through undisclosed manipulative trading tactics." USA Technologies also alleged that the online posts -- which characterized USA Technologies' executive compensation practices as, among other things, "legalized highway robbery" and a "soft Ponzi" -- were defamatory. Pursuant to that lawsuit, USA Technologies issued a subpoena out of the Northern District of California to Yahoo! demanding the critics' identities.

In her ruling, Judge Susan Illston agreed with Stokklerk and quashed the subpoena, recognizing "the Constitutional protection afforded pseudonymous speech over the internet, and the chilling effect that subpoenas would have on lawful commentary and protest." Judge Illston further found that none of the statements at issue were defamatory in context and were instead "protected opinions" under the First Amendment.

"We're gratified that the Court saw it the way we did," said David M. Given of Phillips, Erlewine & Given LLP, which served as co-counsel with EFF in the matter. "The First Amendment principle at stake in this case is paramount to preserving the free interchange of ideas and opinions on the Internet."

For the full ruling:
http://www.eff.org/files/filenode/usatechnologies/USAT-order-051710.pdf

For more on this case:
http://www.eff.org/cases/usa-technologies-v-stokklerk

EFF Research Shows More Than 8 in 10 Browsers Have Unique, Trackable Signatures

San Francisco - New research by the Electronic Frontier Foundation (EFF) has found that an overwhelming majority of web browsers have unique signatures -- creating identifiable "fingerprints" that could be used to track you as you surf the Internet.

The findings were the result of an experiment EFF conducted with volunteers who visited http://panopticlick.eff.org/. The website anonymously logged the configuration and version information from each participant's operating system, browser, and browser plug-ins -- information that websites routinely access each time you visit -- and compared that information to a database of configurations collected from almost a million other visitors. EFF found that 84% of the configuration combinations were unique and identifiable, creating unique and identifiable browser "fingerprints." Browsers with Adobe Flash or Java plug-ins installed were 94% unique and trackable.

"We took measures to keep participants in our experiment anonymous, but most sites don't do that," said EFF Senior Staff Technologist Peter Eckersley. "In fact, several companies are already selling products that claim to use browser fingerprinting to help websites identify users and their online activities. This experiment is an important reality check, showing just how powerful these tracking mechanisms are."

EFF found that some browsers were less likely to contain unique configurations, including those that block JavaScript, and some browser plug-ins may be able to be configured to limit the information your browser shares with the websites you visit. But overall, it is very difficult to reconfigure your browser to make it less identifiable. The best solution for web users may be to insist that new privacy protections be built into the browsers themselves.

"Browser fingerprinting is a powerful technique, and fingerprints must be considered alongside cookies and IP addresses when we discuss web privacy and user trackability," said Eckersley. "We hope that browser developers will work to reduce these privacy risks in future versions of their code."

EFF's paper on Panopticlick will be formally presented at the Privacy Enhancing Technologies Symposium (PETS 2010) in Berlin in July.

For the full white paper: How Unique is Your Web Browser?:
https://panopticlick.eff.org/browser-uniqueness.pdf

For more details on Pantopticlick:
http://www.eff.org/deeplinks/2010/05/every-browser-unique-results-fom-panopticlick

For more on online behavioral tracking:
http://www.eff.org/issues/online-behavioral-tracking

EFF is seeking the immediate release of Federal Bureau of Investigation (FBI) reports on the provisions' effectiveness, lawfulness, and potential misuse in a lawsuit filed under the Freedom of Information Act (FOIA). These controversial PATRIOT provisions give the FBI expanded powers to seize electronic records and property and to wiretap phone conversations, and are set to expire in February of 2011. Congress will likely begin debate on potentially reauthorizing the provisions before the end of the year.

"The PATRIOT Act provisions have faced criticism from both Congress and the general public for the lack of privacy safeguards for ordinary Americans who might mistakenly be caught in overbroad FBI surveillance," said EFF Senior Counsel David Sobel. "The records we are seeking here -- how well the law works, and how it may have been misused -- should be an integral part of the decisions made on how to reform the law."

EFF filed its FOIA request with the DOJ in September of 2009, when initial discussions about reauthorization were beginning in Congress. The FBI initially approved EFF's request for expedited processing, but has not yet disclosed any records. EFF filed its lawsuit today in order to ensure the information is released in time to inform the upcoming congressional debate.

"If the FBI continues to withhold these records, Americans won't have the information they need to make important decisions about reforming the PATRIOT Act," said Sobel. "The DOJ needs to follow the law and release its reports to the public."

For the full complaint:
http://www.eff.org/files/filenode/patriot_records/complaint_patriotrecords.pdf

Facebook Tries to Make Violations of Terms of Use Into Criminal Violations

San Francisco - The Electronic Frontier Foundation (EFF) is urging a federal judge to dismiss Facebook's claims that criminal law is violated when its users opt for an add-on service that helps them aggregate their information from a variety of social networking sites.

Power Ventures makes a web-based tool that users can set up to log into their multiple social networking accounts and aggregate messages, friend lists, and other data so they can see all the information in one place. In a lawsuit against Power Ventures, Facebook claims that Power's tool violates criminal law because Facebook's terms of service ban users from accessing their information through "automatic means." By using Power's tool, Facebook argues that its users are accessing Facebook "without permission" under the California penal code. EFF argues in an amicus brief filed Monday that users have the right to choose how they access their data, and turning any violation of terms of use into a criminal law violation would leave millions of Facebook users unwittingly vulnerable to prosecution.

"California's computer crime law is aimed at penalizing computer trespassers," said EFF Civil Liberties Director Jennifer Granick. "Users who choose to give their usernames and passwords to aggregators like Power Ventures are not trespassing. Under Facebook's theory, millions of Californians who disregard or don't read terms of service on the websites they visit could face criminal liability. Also, any Internet company could use this argument as a hammer to prevent its users from easily leaving the service as well as to shut down innovators and competitors."

Even the simple use of the automatic login feature of most browsers would constitute a violation under Facebook's theory, since those services are "automatic means" for logging in. But the risk for users is even broader. If any violation of terms of use is criminal, users who shave a few years off their age in their profile, claim to be single when they are married, or change jobs or addresses without updating Facebook right away would also have violated the criminal law.

"The information you put into social networking sites is yours, and you should be able to access it, export it, and aggregate it as you please," said EFF Legal Director Cindy Cohn. "If Facebook's legal argument is upheld, it will hobble companies that enable consumer choice, as well a create a massive expansion in the scope of California criminal law."

For the full amicus brief:
http://www.eff.org/files/filenode/facebook_v_power/poweramicus.pdf

Joins With Google and Others to Argue for Fourth Amendment Protection of Email

Denver - The Electronic Frontier Foundation (EFF) along with Google and numerous other public interest organizations and Internet industry associations joined with Yahoo! in asking a federal court Tuesday to block a government attempt to access the contents of a Yahoo! email account without a search warrant based on probable cause.

The Department of Justice is seeking the emails as part of a case that is under seal, and the account holder has apparently not been notified of the request. Government investigators maintain that because the Yahoo! email has been accessed by the user, it is no longer in "electronic storage" under the Stored Communications Act (SCA) and therefore does not require a warrant, even though that same legal theory has been flatly rejected by the one Circuit Court to address it.

Yahoo! is challenging the government request before a federal magistrate judge in Denver, arguing that the SCA and Fourth Amendment require the government to get a search warrant before compelling Yahoo! to disclose the email. In an amicus brief filed in support of Yahoo! Tuesday, EFF says that the company is simply following the law and protecting the constitutional privacy rights of its customers.

"The government is trying to evade federal privacy law and the Constitution," said EFF Senior Staff Attorney Kevin Bankston. "The Fourth Amendment protects these stored emails, just like it does our private papers. We all have a reasonable expectation of privacy in the contents of our email accounts, and the government should have to make a showing of probable cause to a judge before it rifles through our private communications."

This email privacy case comes on the heels of the announcement of a broad coalition of technology companies, think tanks, academics, and privacy groups -- including EFF -- that is calling for amendments to clarify and strengthen federal privacy law to preserve traditional privacy rights in the face of rapidly changing technology. The Digital Due Process coalition's recommendations would, among other things, clarify that the government must get a warrant before obtaining stored email messages, regardless of whether they are opened or unopened and regardless of their age.

"Americans trust Internet service providers and other technology companies to collect and store large amounts of personal information -- more and more every day -- and it's time that Congress clarified and strengthened the law to better protect that data," said EFF Civil Liberties Director Jennifer Granick. "Just as your postal letters and packages are private even though the carrier could open them, so your email and other information is protected even if it is stored on a third party's server."

Along with Google, other signers to the EFF brief are the Center for Democracy & Technology (CDT), the Center for Financial Privacy and Human Rights (CFPHR), the Competitive Enterprise Institute (CEI), the Computer & Communications Industry Association (CCIA), the Distributed Computing Industry Association (DCIA), NetCoalition, the Progress & Freedom Foundation (PFF) and TRUSTe. Signers were represented by EFF, Professor Paul Ohm of the University of Colorado at Boulder and the Samuelson-Glushko Technology Law & Policy Clinic, and attorney Matthew M. Linton of the firm Kennedy Childs & Fogg, P.C., in Denver.

For the full amicus brief:
http://www.eff.org/files/filenode/inreusaorder18/AmiciBriefYahooEmails.pdf

For more on this case:
http://www.eff.org/cases/re-application-united-states-america-order

EFF and Other Nonprofit Groups Ask Court to Reject Viacom's Arguments

New York - The Electronic Frontier Foundation (EFF) and other nonprofit groups asked a federal judge Monday to reject expansive copyright claims made in lawsuits pending against YouTube. The amicus brief argues that the plaintiffs in those lawsuits are pushing for legal rulings that would undermine federal law and throttle free speech and innovation on the Internet.

Viacom and a variety of class action plaintiffs are suing YouTube, claiming that the online video service is liable for copyright infringements committed by its users. YouTube has responded by arguing that its activities are shielded by the "safe harbor" provisions of the Digital Millennium Copyright Act (DMCA), which give legal protections to online service providers that host content on behalf of users.

Despite the DMCA, the plaintiffs have claimed that YouTube should be held responsible for infringements that occurred before May 2008, when the site voluntarily implemented content filtering technologies. In effect, the plaintiffs have urged the court to make content filtering mandatory for all online service providers that host content on behalf of users. In the amicus brief filed Monday, EFF -- joined by the American Library Association, Association of College and Research Libraries, Association of Research Libraries, Center For Democracy and Technology, Computer and Communications Industry Association, Home Recording Rights Coalition, Internet Archive, NetCoalition, and Public Knowledge -- argues that Viacom's theory would rewrite federal law and thwart Congress' goal of reducing the legal uncertainties facing companies trying to innovate on the Internet.

"This case is not just about YouTube," said EFF Senior Staff Attorney Fred von Lohmann. "Nearly every online service that fosters free expression and commerce online -- like the Internet Archive, Blogger, Facebook, eBay, Amazon, Flickr, and Scribd -- depends on the very same DMCA safe harbors that YouTube is relying on here. Viacom is trying to undo the law that Congress designed to provide a modicum of legal certainty for those who build these innovative online services."

The cases against YouTube are pending in federal court in the Southern District of New York. Additional briefs will be filed by the parties on April 30 and June 4. A hearing and decision will follow.

For the full amicus brief:
http://www.eff.org/files/filenode/viacom_v_youtube/YouTubeAmicusBriefFINAL.pdf

Atlanta - The Electronic Frontier Foundation (EFF) and attorney Bryan Vroon asked the U.S. Court of Appeals for the 11th Circuit today to reexamine a panel ruling that violated a whistleblower's Fourth Amendment right to privacy in his email communications.

The whistleblower, Charles Rehberg, uncovered systematic mismanagement of funds at a Georgia public hospital. He alerted local politicians and others to the issue through a series of faxes. A local prosecutor in Dougherty County, Ken Hodges, conspired with the hospital and used a sham grand jury subpoena to obtain Mr. Rehberg's personal email communications. The prosecutor then provided that information to private investigators for the hospital and indicted Mr. Rehberg for a burglary and assault that never actually occurred. All the criminal charges against Mr. Rehberg were eventually dismissed. Hodges is currently running for Attorney General of Georgia in the Democratic primary.

Mr. Rehberg filed a civil suit against the prosecutors and their investigator for their misconduct, but the appeals court erroneously ruled that he did not have a reasonable expectation of privacy in his private email.

"Mr. Rehberg did the right thing and blew the whistle on financial mismanagement," said EFF Civil Liberties Director Jennifer Granick. "In response, he was persecuted by local authorities and his constitutional rights were violated. It's well established that individuals have a right to privacy in the content of their communications, electronic or otherwise. We're asking the court to look at this again and follow the law."

Also at issue in EFF's request for rehearing is the panel's decision to give immunity to county prosecutors and their investigators for manipulating and fabricating "evidence" and defaming Mr. Rehberg as a felon in comments to the press.

"The Supreme Court has ruled that prosecutors are not entitled to immunity when they fabricate evidence during the course of an investigation, knowingly defame an innocent man as a felon to the press, or collude with private parties to retaliate against a critic, as they did here," said Mr. Vroon, who has represented Mr. Rehberg since the beginning of his lawsuit. "This case involves a gross misuse of power which damaged an innocent man who never committed a burglary or assault on anyone."

For the full brief:
http://www.eff.org/files/filenode/rehberg_v_hodges/rehbergmotion.pdf

San Francisco - As part of a broad coalition of privacy groups, think tanks, technology companies, and academics, the Electronic Frontier Foundation (EFF) today issued recommendations for strengthening the federal privacy law that regulates government access to private phone and Internet communications and records, including cell phone location data.

The "Digital Due Process" coalition includes major Internet and telecommunications companies like Google, Microsoft, and AT&T as well as advocacy groups such as the American Civil Liberties Union (ACLU) and the Center for Democracy & Technology (CDT). The coalition has joined together to preserve traditional privacy rights and clarify legal protections in the face of a rapidly changing technological landscape.

"The federal law protecting Internet and telephone users' privacy was written nearly 25 years ago, which is eons ago in 'Internet time,'" said EFF Senior Staff Attorney Kevin Bankston. "When it comes to privacy, EFF has had its disagreements with fellow Digital Due Process members such as Google and AT&T. But this diverse coalition of privacy advocates and Internet companies agree on at least one thing: the current electronic privacy laws are woefully outdated and must be updated to provide clear privacy protections that reflect the always-on, location-enabled, Web 2.0 world of the 21st century."

The group's four recommendations focus on how to update the Electronic Communications Privacy Act (ECPA), a law originally passed in 1986 before the World Wide Web was invented and when the number of American cell phone users numbered in the tens of thousands rather than the hundreds of millions. The group recommends that the legal standards under which the government can obtain private communications and records be clarified and strengthened in order to:

* Better protect the privacy of communications and documents you store in the cloud

* Better protect you against secret tracking of your location through your cell phone or any other mobile device

* Better protect you against secret monitoring of when and with whom you communicate over the telephone or the Internet

* Better protect innocent Americans against government fishing expeditions through masses of communications data unrelated to a criminal suspect

"The recommendations of the Digital Due Process coalition are not an exclusive list of the reforms to ECPA that EFF would support, and in some cases EFF would urge even stronger protections than those urged by the group," said Bankston. "However, EFF strongly agrees with its fellow Digital Due Process members that each of the coalition's recommended changes would significantly strengthen the law and better protect privacy."

A full description of the coalition and its recommendations is available at www.digitaldueprocess.org.

Senior Staff Attorney Kevin Bankston to Testify In Response to School Webcam Scandal

Philadelphia - On Monday, March 29, at 10 a.m., the Subcommittee on Crime and Drugs of the U.S. Senate Judiciary Committee will hold a public hearing in the Philadelphia federal courthouse on whether the federal electronic privacy laws need to be updated to better regulate secret video surveillance. Senior Staff Attorney Kevin Bankston of the Electronic Frontier Foundation (EFF) will testify.

Subcommittee Chairman Arlen Specter called the hearing in response to recent allegations that public schools in the Lower Merion School District in Pennsylvania have secretly used webcams on school-issued laptops to visually monitor students while they were in their homes. At Monday's hearing, Bankston will urge Congress to update the federal wiretapping statute to protect against secret video surveillance in the same way it protects against secret eavesdropping on private conversations. Such a change to the law would clearly require the government to obtain a search warrant before engaging in secret video surveillance of private places and would protect against similar spying by non-government actors, such as stalkers, computer criminals, private schools, private employers and others.

"It doesn't make sense that federal law regulates secret eavesdropping but doesn't equally protect us from secret video surveillance, which can be even more invasive," said Bankston. "Just as the federal wiretapping statute protects against electronic eavesdropping, it should also protect against secret video recording, whether in the home or in any other place where people have a reasonable expectation that they are not going to be photographed."

Public Employees Have Reasonable Expectation of Privacy in Workplace Electronic Communications

Washington, D.C. - The Electronic Frontier Foundation (EFF) urged the United States Supreme Court today to ensure that modern communications methods such as text messages retain the constitutional privacy protections applied to earlier technologies.

In an amicus brief in City of Ontario v. Quon, EFF sided with a public employee who was allowed personal use of his work pager but then discovered that his employer had secretly obtained his communication records from his wireless provider. The U.S. Court of Appeals for the 9th Circuit ruled that the city violated the Fourth Amendment, and the Supreme Court granted the city's request to review that ruling.

"The Constitution fully safeguards the privacy of electronic communications sent over employer-provided equipment," said EFF Civil Liberties Director Jennifer Granick. "Text messages, like phone calls or letters, are protected from warrantless law enforcement surveillance, even if sent from the workplace or through an outside service provider."

This case comes to the Supreme Court as Americans are adopting smart phones in record numbers, making texting and on-the-fly emailing a part of everyday life for millions of people. Most employers allow and encourage some use of workplace equipment for personal communications, instead of forcing employees to carry around multiple devices. In its amicus brief, EFF urged the court not to disturb longstanding Fourth Amendment protections against warrantless law enforcement access to these electronic communications.

"The privacy questions in this case turn on the application of settled legal principles in new technological contexts," said Andrew Pincus of Mayer Brown LLP and the Yale Supreme Court Clinic, who worked with EFF on the amicus brief. "The court should proceed cautiously, in order to preserve constitutional protections for Americans' most private communications."

"People are moving away from postal mail and landline phones to electronic and mobile communications, both at home and at the workplace," added EFF's Granick. "We should not be forced to leave our privacy behind."

EFF was joined on this brief by the America Civil Liberties Union (ACLU), the Center for Democracy and Technology (CDT), and Public Citizen.

For the full amicus brief:
http://www.eff.org/files/filenode/ontario_v_quon/EFFamicus.pdf

Senior Counsel David Sobel to Testify on the Freedom of Information Act and the Obama Administration

Washington, D.C. - On Thursday, March 18, at 2 p.m., members of the U.S. House of Representatives Oversight and Government Reform Committee will hold a public hearing on the Freedom of Information Act (FOIA) and the Obama administration compliance with transparency law. The hearing comes as transparency advocates celebrate Sunshine Week, the annual celebration of our nation's open government laws that features numerous events measuring the progress made in combating official secrecy.

Senior Counsel David Sobel of the Electronic Frontier Foundation (EFF) will testify at Thursday's hearing, urging the White House to fulfill its promises for open government. Despite President Obama's order to government agencies last year to renew their commitment to FOIA, EFF and other organizations still see delays in releasing relevant documents, excuses for not releasing other records, and excessive redactions, among other needless secrecy.

In one case, for example, EFF has compared heavily redacted documents from the FBI released to us under FOIA with documents leaked from a whistleblower containing no redactions. We found that much of the blacked-out content concerns the FBI's attempts to avoid court oversight of its inappropriate surveillance tactics through the use of generic and legally questionable "umbrella" authorizations. However, these umbrella authorizations had already been revealed to the public in a previous report by the Department of Justice's Inspector General. You can see a revealing side-by-side comparison at http://www.eff.org/pages/sunshine2010.

WHO:
David Sobel
Senior Counsel, Electronic Frontier Foundation

WHAT:
"Administration of the Freedom of Information Act: Current Trends"
U.S. House Oversight and Government Reform Committee, Subcommittee on Information Policy, Census, and National Archives

WHEN:
2 p.m.
Thursday, March 18

WHERE:
Rayburn House Office Building
Room 2154
Washington, D.C. 20515

For more on the hearing:
http://oversight.house.gov/index.php?option=com_jcalpro&Itemid=2&extmode=view&extid=134

For a side-by-side comparison of the FBI redactions:
http://www.eff.org/pages/sunshine2010

Wednesday Panels are Open to the Public at the FTC Conference Center

Washington, D.C. - On Wednesday, March 17, the Federal Trade Commission (FTC) is hosting its final public roundtable on technology privacy challenges in Washington, D.C. Two experts from the Electronic Frontier Foundation (EFF) are taking part.

EFF Senior Staff Technologist Peter Eckersley and EFF Boardmember Edward W. Felten will discuss "Internet Architecture and Privacy" at the first panel of the day. Later panels will cover health information privacy and issues around other sensitive information, as well as lessons learned so far and future plans for privacy protection.

For more information on attending the roundtable including a full agenda, visit http://www.ftc.gov/bcp/workshops/privacyroundtables/index.shtml

Battle Over Message Board Flame War Must Not Circumvent the First Amendment

Chicago - The Electronic Frontier Foundation (EFF) and the Media Freedom and Information Access Practicum (MFIA) at Yale Law School filed a friend-of-the-court brief today urging the Illinois Court of Appeals to block the unmasking of an anonymous online critic of a local political candidate.

The critic, commenting on a story on the website of a suburban Chicago newspaper called the Daily Herald, engaged in a heated debate with other commenters. One turned out to be the son of the village trustee candidate in Buffalo Grove, Illinois, who was discussed in the article. The candidate, Lisa Stone, who eventually won her race, asked a state court to order the newspaper to release the critic's name and address without appropriately showing that the statements directed towards her son were defamatory or otherwise illegal. Stone indicated that she may choose to subsequently file a lawsuit once she determines the critic's identity through the pre-complaint procedure.

"Because of the enormous potential for abuse, the First Amendment requires litigants to demonstrate that they have a legitimate case before they can use the courts to unmask anonymous online critics," said EFF Senior Staff Attorney Matt Zimmerman. "Insults are not enough, especially when the conversation takes place in the context of a political campaign."

In November, a lower court granted Stone's pre-lawsuit request for her critic's identity, incorrectly arguing that a narrow disclosure to Stone would adequately protect the speaker's First Amendment rights. The court stayed the disclosure requirement in light of the speaker's appeal. In its amicus brief filed today, EFF and MFIA argue that this low standard for unmasking an anonymous speaker has a chilling effect on all manner of anonymous speech, political or otherwise.

"Lisa Stone is now a person of political power in the community. She does not have a blank check to pry into someone's life just because he said something she didn't like," said Margot Kaminski, Yale Law student and co-founder of MFIA. "We hope the Court of Appeals will recognize the importance that anonymous speech plays in the free and robust political debate generated by newspapers online."

For the full amicus brief:
http://www.eff.org/files/filenode/stone_v_paddock/Scanned%20Brief.pdf

Groups Urge California PUC to Adopt Rules to Protect Consumer Privacy

San Francisco - Privacy advocates are warning that "smart meters" intended to precisely measure and control home electrical consumption could erode the privacy of daily life unless regulators limit data collection and disclosure. In a joint filing yesterday, the Center for Democracy & Technology (CDT) and the Electronic Frontier Foundation (EFF) urged the California Public Utilities Commission (PUC) to adopt rules to protect the privacy and security of consumers' energy-usage information. The Samuelson Law, Technology & Public Policy Clinic at UC Berkeley School of Law drafted the comments for CDT.

Smart meters being installed now in California will collect 750 to 3,000 data points a month per household. This detailed energy usage data can indicate whether someone is at home or out, entertaining guests, or using particular appliances. Marketers and others may seek such data. To head off misuse of the information, CDT and EFF urged the California PUC to adopt comprehensive privacy standards for the collection, retention, use and disclosure of consumers' household energy data.

"In the absence of clear rules, this potentially beneficial smart grid technology could mean yet another intrusion on private life," said Jim Dempsey, San Francisco-based Vice President of CDT. "The PUC should act now, before our privacy is eroded."

CDT and EFF argue that utilities collecting detailed information about energy use in the home must specify in advance how they are going to use that data and must confine their collection to legitimate purposes. Disclosure to marketers or government agencies should be restricted. In addition, utility companies should ensure that consumers have access to their own data, so they can take advantage of innovative energy efficiency services.

"The Smart Grid offers great promise for fighting climate change and improving energy policy, but it can also amass vast amounts of data that reveals intimate details of consumers' lives," said Jennifer Lynch, an attorney with the Samuelson Clinic. "Building privacy protections into the Grid from the beginning protects both the environment and consumers from harm."

The California PUC is conducting a rulemaking proceeding to consider setting policies, standards, and protocols to guide the development of the smart grid system. The stimulus law signed by President Obama in February 2009 included $4.5 billion to modernize the electric grid. The electric utilities' ongoing smart meter projects are one aspect of this initiative. However, increases in efficiency and economy promised by the Smart Grid need to be measured against the potential privacy risks.

"The data points gathered by advanced energy metering projects will allow the reconstruction of your life: when you wake up, when get home, when you go on vacation. It's not hard to imagine a divorce lawyer subpoenaing this information, or an insurance company interpreting the data in a way that allows it to penalize customers, or criminals intercepting the information to plan a burglary," said EFF Senior Staff Attorney Lee Tien. "We must have meaningful rules to protect this extremely sensitive information."

For the full comments to the California PUC:
http://www.eff.org/files/CDTEFFJointComment030910.pdf

For more on California's smart grid initiative:
http://www.cpuc.ca.gov/PUC/energy/smartgrid.htm

San Francisco - The Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief today urging a federal court judge to block two criminal statutes that unconstitutionally limit the free expression of millions of adults who use the Internet and other electronic forms of communication, bringing the threat of criminal sanctions for private, lawful speech.

At issue are provisions of federal law that require anyone who produces a visual depiction of sexually explicit expression to maintain extensive records -- including copies of drivers' licenses, the dates and times images were taken, and all URLs where images were posted -- and often force public disclosure of a creator's home address. Even more troubling, the regulations allow law enforcement warrantless entry into homes or offices in order to inspect the records that are supposed to be kept. While these statutes regulate the commercial pornography industry, they also likely apply to a staggering number of Americans who create and share images of themselves over social networks, online dating services, personal erotic websites, and text messaging.

"The plain language of the statute subjects ordinary Americans, who are using emerging communications technologies at an ever-increasing rate, to onerous record-keeping and inspection requirements for lawful speech. They could face up to five years in prison if they don't follow the statutory requirements to the letter," said EFF Senior Staff Attorney Matt Zimmerman. "Speakers who engage in private, expressive activity protected by the First Amendment should not be at risk of criminal sanctions for violating an overbroad statute that they likely know nothing about."

A coalition of artists, producers, distributors, and educators filed suit against the provisions last year, arguing that the law censored their artistic and educational work. In its amicus brief in support of the coalition filed today, EFF asked the judge to throw out the record-keeping regulations as an unconstitutional chill on adult free expression in the digital age.

"Digital cameras, camcorders, and the Internet make it easy to create and share lawful adult material in a wide variety of ways. Thousands of ordinary Americans are doing just that, only to find themselves subject to these record-keeping and inspection requirements," said EFF Civil Liberties Director Jennifer Granick. "This just doesn't square with the Constitution."

For the full amicus brief:
http://www.eff.org/files/filenode/fsc_v_holder/EFF%20Amicus%20Brief.pdf

For more on Free Speech Coalition v. Holder:
http://www.eff.org/cases/free-speech-coalition-v-holder

Lawful Speech Should Not Be Collateral Damage in Copyright Battles

San Francisco - The Electronic Frontier Foundation (EFF) submitted a petition signed by more than 7000 people to the Federal Communications Commission (FCC) today demanding that the agency close a loophole for copyright enforcement in its proposed regulations for network neutrality.

The petition is part of EFF's reply comments in the FCC's net neutrality rulemaking. The FCC's proposed rules generally prohibit ISPs from discriminating or blocking lawful content, but include a loophole for 'reasonable network management' by ISPs. The proposed rules then define 'reasonable network management" to include measures taken by ISPs to block unlawful content or transmissions. This exception would effectively permit ISPs to violate net neutrality rules and block lawful activities in the name of copyright enforcement.

"We can't afford to let lawful speech become collateral damage in Hollywood's war on copyright infringement," said EFF Senior Staff Attorney Fred von Lohmann. "Net neutrality regulations should not excuse ISPs that interfere with lawful content just because they claim they were acting as copyright cops."

EFF's original comments to the FCC, submitted in January, also question whether the FCC has the legal authority or political independence necessary to properly regulate the Internet. Additionally, EFF has called on the FCC to protect the interests of individuals who offer open WiFi Internet access to their neighbors or local communities.

"Before the ink is dry on net neutrality regulations, we already see corporate lobbyists and 'public decency' advocates pushing for loopholes," said EFF Civil Liberties Director Jennifer Granick. "A loophole like this could swallow network neutrality, with ISPs claiming copyright enforcement as a pretext for all sorts of discriminatory behavior."

For EFF's full reply comments to the FCC:
http://www.eff.org/files/filenode/nn/EFF%20NN%20reply%20comments2b.pdf

EFF Documents Continuing Legacy of Harm to Fair Use, Free Speech

San Francisco - Twelve years after the passage of the controversial Digital Millennium Copyright Act (DMCA), the law continues to stymie fair use, free speech, scientific research, and legitimate competition. A new report from the Electronic Frontier Foundation (EFF) collects reported examples of abuses of the DMCA and the ongoing harm the law continues to inflict on consumers, scientists, and small businesses.

The U.S. Copyright Office is currently mulling proposed exemptions to the DMCA's ban on "circumventing" digital rights management (DRM) and "other technical protection measures" used to restrict access to copyrighted works. The Copyright Office is empowered to grant exemptions to the law every three years to mitigate the harms that DRM otherwise would impose on legitimate, non-infringing uses of copyrighted materials.

The triennial Copyright Office rulemaking, however, has not been enough to prevent abuses of the DMCA. EFF's report details the numerous harms stemming from the DMCA's ban on circumventing DRM, including Apple's attempts to lock down the iPhone and force users into its App Store. Also new in this year's report is the account of hobbyists threatened by Texas Instruments for blogging about potential modifications to the company's programmable graphing calculators as well as the story behind the legal attacks on Real DVD and other products that create innovative new ways for consumers to enjoy DVD content they have legitimately purchased.

"The DMCA's ban on tampering with digital locks on content is a dangerous anachronism, a holdover from a time when people thought DRM could solve all of Hollywood's problems," said EFF Senior Staff Attorney Fred von Lohmann. "The DMCA's ban on bypassing DRM has failed to stem digital copyright infringement, but it has unfortunately been repurposed as a cudgel to threaten legitimate research and competitors."

Among the DMCA exemption requests currently before the Copyright Office are three from EFF. One asks for an exemption for amateur creators who use excerpts from DVDs in order to create new, noncommercial remix videos. Another would explicitly exempt cell phone "jailbreaking," allowing iPhones and other handsets to run applications from any source. EFF's third proposal asks for a renewal of an exemption previously granted for unlocking cells phones so they can be used with any mobile carrier. A final decision on these and other requests is expected from the Copyright Office within the next few weeks.

For "Unintended Consequences: Twelve Years Under the DMCA":
http://www.eff.org/wp/unintended-consequences-under-dmca

For more on EFF's exemption requests:
http://www.eff.org/cases/2009-dmca-rulemaking

Board Members to Discuss Societal Impact of Technology Design

Pittsburgh - On Monday, March 8, at 4 p.m., board members of the Electronic Frontier Foundation (EFF) will discuss the societal impact of technology design in a panel at Carnegie Mellon University.

Technology design can maximize or decimate our basic rights to free speech, privacy, property ownership, and creative thought. The panel will discuss some good and bad design decisions through the years and the ramifications of those decisions.

Monday's panel is free and open to the public.

WHAT:
Architecture Is Policy: The Legal and Social Impact of Technical Design Decisions

Questions You Need to Ask Before Buying a Digital Book

San Francisco - What questions should consumers ask before buying a digital book or reader? Today the Electronic Frontier Foundation (EFF) published "Digital Books and Your Rights," a checklist for readers considering buying into the digital book marketplace.

Over the last few months, the universe of digital books has expanded dramatically, with products like Amazon's Kindle, Google Books, Internet Archive's Text Archive, Barnes and Noble's Nook, and Apple's upcoming iPad poised to revolutionize reading. But while this digital books revolution could make books more accessible than ever before, there are lingering questions about the future of reader privacy, consumers' rights, and potential censorship.

EFF's checklist outlines eight categories of questions readers should ask as they evaluate new digital book products and services, including:

*Does the service protect your privacy by limiting tracking of you and your reading?

*When you pay for a book, do you own the book, or do you just rent or license it?

*Is the service censorship resistant?

"As these new services roll out, we need to know if they will respect or hamper the traditional rights and expectations of readers. Physical books have many natural protections for readers, and other protections have been created over time by libraries and bookstores," said EFF Senior Staff Attorney Corynne McSherry. "These questions will help book lovers decide what they want their digital book future to look like and then vote with their feet to get to that future."

As other ebook readers and reader services develop, a federal judge is considering final approval of a settlement that would pave the way for a huge expansion of Google Books, giving Google the green light to scan and digitize millions of books and allow users to search for and read those books online. Unfortunately, Google's system monitors what books users search for, how much of the books they read, and how long they spend on various pages, and Google refuses to require a warrant before providing that information to the government. EFF Legal Director Cindy Cohn will appear before the court at a hearing in New York on February 18, representing a coalition of authors including Michael Chabon, Jonathan Lethem, and many others concerned about reader privacy.

"Our coalition is asking the court to ensure that Google's huge new digital library/bookstore maintains the strong protections for reader privacy that traditional libraries and bookstores have fought for and largely won," said Cohn.

For more information on next week's hearing, email press@eff.org.

For the full report "Digital Books and Your Rights":
https://www.eff.org/wp/digital-books-and-your-rights

Police Gathered Suspect's Data Without a Warrant

Redwood City, Calif. - On Thursday, February 18, at 9:00 a.m., the Electronic Frontier Foundation (EFF) will urge a judge in Redwood City, California, to suppress evidence illegally gathered from an iPhone.

Police in Daly City, California, seized the suspect's phone during his arrest. Hours later, investigators searched through the data on the device -- including contacts, called phone numbers, emails, text messages, Internet search history, and photos -- without a search warrant. Police later obtained a search warrant for the phone, based in part on information gathered during the initial illegal search.

In Thursday's hearing, EFF Senior Staff Attorney Marcia Hofmann will ask the court to suppress the illegally gathered evidence and quash the warrant based on that improperly collected information.

Appeals Court Takes on First Sale Doctrine in Vernor v. Autodesk

San Francisco - The Electronic Frontier Foundation (EFF), joined by a coalition of public interest, consumer, and library groups, urged a federal appeals court Thursday to preserve consumers' rights and the first sale doctrine in a battle over an Internet auction of used computer software.

Timothy Vernor is an online software reseller who tried to auction four packages of Autodesk's AutoCAD software on eBay. Autodesk threatened Mr. Vernor with a copyright lawsuit, claiming that its software is only "licensed," never sold. With the assistance of the public interest litigators at Public Citizen, Vernor filed suit in Seattle against Autodesk, asking the court to clarify his right to resell the AutoCAD software packages. He prevailed before the district court in 2009, prompting Autodesk to appeal.

"For too long, software companies have tried to strip consumers of their rights as owners of software by pretending that all software is licensed, rather than sold," said EFF Senior Staff Attorney Fred von Lohmann. "But if software companies can strip us of our rights with a license agreement, there's nothing to stop book publishers, record labels, and movie studios from using the same trick to shut down libraries, archives, used bookstores, and online auctions. For more than a century, the first sale doctrine in copyright law has stood for the principle that if you bought it, you own it, and you can resell it or give it away."

In an amicus curiae brief filed Thursday with the U.S. Court of Appeals for the 9th Circuit, EFF -- joined by the Consumer Federation of America, the American Library Association, Association of Research Libraries, Association of College and Research Libraries, U.S. Public Interest Research Group, and Public Knowledge -- argued that Autodesk cannot trump the first sale doctrine with a "license agreement" included with its software.

"What's at stake in this case is the ability of consumers actually to own the things they pay for. We can't let the fine print used by the copyright holder gain complete control over every aspect of a work's use," said Sherwin Siy, deputy legal director for Public Knowledge. "If that happens, then everything becomes a potential copyright infringement. The simple things we take for granted, like buying and selling used books or CDs, or even software, would disappear under the threat of massive fines or possible criminal charges."

For the full amicus brief:
http://www.eff.org/files/filenode/vernor_v_autodes/VernorAmicus.pdf

Panel Rules Law Does Not Protect Identities of Lobbyists

San Francisco - Today a federal appeals court rejected a government claim of "lobbyist privacy" to hide the identities of individuals who pressured Congress to grant immunity to telecommunications companies that participated in the government's warrantless electronic surveillance of millions of ordinary Americans. As the court observed, "There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence."

The Electronic Frontier Foundation (EFF) has been seeking records detailing the telecoms' campaign for retroactive legal immunity under the Freedom of Information Act (FOIA). Telecom immunity was enacted as part of the FISA Amendments Act of 2008.

"Today's ruling is an important one for government and corporate accountability," said EFF Staff Attorney Marcia Hofmann. "The court recognized that paid lobbyists trying to influence the government to advance their clients' interests can't hide behind privacy claims to keep their efforts secret."

This decision is the latest setback for the government in its long-running attempt to delay disclosure of the documents EFF seeks. So far, EFF has obtained thousands of pages of records through this litigation.

"AT&T, Verizon and Sprint expended millions of dollars to lobby the government and get an unconstitutional grant of retroactive immunity for their illegal spying on American citizens," said EFF Senior Staff Attorney Kurt Opsahl. "The public deserves to know how our rights were sold out by and for telecom lobbyists."

The appeals court sent part of the case back down to the district court for further consideration, including whether disclosure of the lobbyists' identities would reveal intelligence sources and methods and whether communications between the agencies and the White House can be withheld under the presidential communications privilege or other grounds.

For the full opinion:
http://www.eff.org/files/filenode/foia_C0705278/opinion2909.pdf

For more on this case:
http://www.eff.org/issues/foia/cases/C-07-05278

Government Should Come Back With a Warrant If It Wants Location Information

UPDATE: The hearing has been moved to Friday, February 12, at 9:30am.

Philadelphia - The Electronic Frontier Foundation (EFF) will be arguing this Friday before the U.S. Court of Appeals for the 3rd Circuit in Philadelphia, urging the court to block a government attempt to seize telephone company records detailing a cell phone user's past locations without first getting a search warrant.

EFF is serving as a friend of the court or "amicus," joined by co-amici the ACLU, the ACLU of Pennsylvania, and the Center for Democracy & Technology. Professor Susan Freiwald of the University of San Francisco, who submitted a separate amicus brief to the panel, will be joining EFF Senior Staff Attorney Kevin Bankston in arguing on Thursday that federal privacy statutes in combination with the Fourth Amendment to the U.S. Constitution protect the privacy of cell phone users and require the government to show probable cause before obtaining cell phone location information.

WHAT:
Oral argument In the Matter of the Application of the United States of America for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government

Another Big Win for EFF's Patent Busting Project

San Francisco - The Electronic Frontier Foundation (EFF) has won reexamination of an illegitimate patent on voice-over-Internet protocol (VoIP) that could cripple the adoption of new VoIP technologies.

A company named Acceris Communications Technologies, now C2 Communications Technologies, was awarded the bogus patent for hardware, software, and processes for implementing VoIP using analog telephones as endpoints -- covering many telephone calls made over the Internet. EFF and the law firm Fenwick & West LLP filed a reexamination request showing that both a prior patent and published reference materials described the underlying technology long before Acceris made its claim. Today the United States Patent and Trademark Office (USPTO) granted EFF's reexamination request, ruling that there were substantial new questions of patentability.

"Our American patent system is meant to encourage invention and innovation," said EFF Legal Director Cindy Cohn. "Undeserved patents instead serve to quash competition and hurt business and consumers."

"We are pleased that the USPTO agrees with the substantial new questions of patentability raised in EFF's request, and we look forward to the USPTO's ultimate decision on this patent," said Nikhil Iyengar of Fenwick &West.

The challenge to this patent is part of EFF's Patent Busting Project, which combats the chilling effects of bad patents on the public and consumer interests. So far eight patents targeted by EFF have been busted, invalidated, narrowed, or had a reexamination granted by the Patent Office.

Public Discussion Set for Thursday at UC Berkeley School of Law

Berkeley, CA - On Thursday, January 28, the Federal Trade Commission (FTC) is hosting a day-long public roundtable in Berkeley, California, exploring the privacy challenges posted by new developments in technology. Three experts from the Electronic Frontier Foundation (EFF) are taking part.

Panels at Thursday's roundtable include "Technology and Privacy," where EFF Staff Technologist Peter Eckersley will discuss the arms race between tracking technologies and privacy-enhancing technologies. Also on the agenda is "Privacy Implications of Mobile Computing" with EFF Senior Staff Attorney Kevin Bankston addressing privacy issues of location-based services and "Technology and Policy" with EFF Senior Staff Attorney Lee Tien discussing how privacy can be designed into new products. Other panels will tackle social networking services and cloud computing.

For more information on attending the roundtable including a full agenda, visit http://www.ftc.gov/bcp/workshops/privacyroundtables/index.shtml

WHAT:
FTC Roundtable "Exploring Privacy"

WHEN:
Thursday, January 28
7:45am to 6pm

WHERE:
University of California, Berkeley, School of Law
Booth Auditorium, Boalt Hall
Berkeley, CA 94720

For more information on the roundtable:
http://www.ftc.gov/bcp/workshops/privacyroundtables/index.shtml

Court Rules That Mass Surveillance of Americans is Immune From Judicial Review

San Francisco - A federal judge has dismissed Jewel v. NSA, a case from the Electronic Frontier Foundation (EFF) on behalf of AT&T customers challenging the National Security Agency's mass surveillance of millions of ordinary Americans' phone calls and emails.

"We're deeply disappointed in the judge's ruling," said EFF Legal Director Cindy Cohn. "This ruling robs innocent telecom customers of their privacy rights without due process of law. Setting limits on Executive power is one of the most important elements of America's system of government, and judicial oversight is a critical part of that."

In the ruling, issued late Thursday, U.S. District Court Chief Judge Vaughn Walker held that the privacy harm to millions of Americans from the illegal spying dragnet was not a "particularized injury" but instead a "generalized grievance" because almost everyone in the United States has a phone and Internet service.

"The alarming upshot of the court's decision is that so long as the government spies on all Americans, the courts have no power to review or halt such mass surveillance even when it is flatly illegal and unconstitutional," said EFF Senior Staff Attorney Kevin Bankston. "With new revelations of illegal spying being reported practically every other week -- just this week, we learned that the FBI has been unlawfully obtaining Americans' phone records using Post-It notes rather than proper legal process -- the need for judicial oversight when it comes to government surveillance has never been clearer."

Jewel v. NSA is aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. That same evidence is central to Hepting v. AT&T, a class-action lawsuit that's currently under appeal in the U.S. Court of Appeals for the 9th Circuit.

For the judge's full order:
http://www.eff.org/files/filenode/jewel/jeweldismissal12110.pdf

For more on warrantless wiretapping and NSA spying:
http://www.eff.org/issues/nsa-spying

Asks FCC to Close Loopholes That Endanger Free Speech and Innovation

San Francisco - The Electronic Frontier Foundation (EFF) called on the Federal Communications Commission (FCC) today to close loopholes in its proposed regulations for network neutrality -- loopholes that could let the entertainment industry and law enforcement hinder free speech and innovation.

"The central goal of the net neutrality movement is to prevent ISPs from discriminating against lawful content on the Internet," said EFF Civil Liberties Director Jennifer Granick. "Yet the FCC's version of net neutrality specifically allows ISPs to make those discriminations -- opening the door to widespread Internet surveillance and censorship in the guise of copyright protection and addressing the needs of law enforcement."

Under the FCC's proposed neutrality rules, ISPs would get a free pass to block content in pursuit of copyright infringement or when they voluntarily adopt measures to help law enforcement.

"We know from bitter experience that dragnet copyright enforcement efforts often end up inflicting collateral damage on lawful activities," said EFF Senior Staff Attorney Fred von Lohmann. "Neutrality regulations should not excuse ISPs that discriminate against or block innocent content just because they claim it was done to protect copyrights or cater to law enforcement."

EFF's comments also question whether the FCC has the authority to regulate the Internet in the first place, citing the lack of any legal basis to enact net neutrality rules. Additionally, EFF calls on the FCC to protect the interests of individuals who offer open WiFi Internet access to their neighbors or local communities.

Also today, EFF launched the Real Net Neutrality campaign to coordinate public support for removal of the copyright-enforcement loophole. On RealNetNeutrality.org, people can sign EFF's petition to the FCC and learn more about issue.

For EFF's full comments to the FCC:
http://www.eff.org/files/filenode/nn/EFFNNcomments.pdf

Washington - A group of political activists including members of the Yes Men and the Action Factory have moved to dismiss a meritless lawsuit filed by the United States Chamber of Commerce accusing the activists of infringing the Chamber's trademarks in the course of a political parody highlighting the Chamber's controversial stance on climate change.

In the motion filed Tuesday, the activists -- represented by the Electronic Frontier Foundation (EFF) and Davis Wright Tremaine, LLP -- argue that the Chamber's suit was designed to punish core political speech, rather than to vindicate any actual trademark harm, and should therefore be dismissed.

"U.S. courts have long recognized that trademark rights do not include the right to control language and silence critics," said EFF Senior Staff Attorney Corynne McSherry. "This political parody was clearly protected by fair use and the First Amendment."

At issue is a "press conference" staged by the activists in mid-October, in which the Chamber of Commerce ostensibly reversed its position and promised to stop lobbying against strong climate change legislation, a stance that has caused several prominent Chamber members to leave the organization. As has been widely reported, only minutes after the press conference got underway, a Chamber of Commerce representative rushed into the room and revealed that the Chamber's position on climate change legislation had not in fact changed.

The Chamber responded by sending an improper copyright takedown notice to the Yes Men's upstream Internet provider, demanding that a parody website posted in support of the action be removed immediately, which resulted in the temporary shutdown of not only the spoof site but hundreds of other sites hosted by May First/People Link. Next, the Chamber filed suit against the activists in federal court, claiming the activism infringed their trademarks.

"The Chamber's lawsuit seeks to punish the Yes Men for exercising their constitutionally-protected free speech right to parody the Chamber of Commerce's controversial position on climate change," said Davis Wright Tremaine LLP attorney Thomas R. Burke.

The Chamber's opposition to the activists' motion is due on January 19.

For the full motion to dismiss:
http://www.eff.org/files/filenode/yesmen/YesMenMTDwithExA.pdf

For more on this case:
http://www.eff.org/cases/chamber-commerce-v-servin

San Francisco - The Electronic Frontier Foundation (EFF) has asked a federal judge in San Francisco to quash a baseless subpoena aimed at outing an anonymous online critic of a Pennsylvania company called USA Technologies. A hearing in the case is set for Friday.

Earlier this year, EFF's client -- Yahoo! user "stokklerk" -- posted to the Yahoo! message board dedicated to the company, criticizing USA Technologies and its CEO George Jensen, Jr., for plummeting stock prices, high compensation rates for executives, and consistent lack of profitability. Another anonymous poster had similar complaints. In response, USA Technologies filed suit in the Eastern District of Pennsylvania, alleging that the statements violated federal securities regulations because they were part of a "scheme" for the authors to "enrich themselves through undisclosed manipulative trading tactics." USA Technologies also alleged that the online posts were defamatory. As part of that lawsuit, USA Technologies issued a subpoena out of the Northern District of California to Yahoo! asking for the critics' identities.

"The First Amendment protects the right to speak anonymously so people can express their views without fear of retribution or reprisal," said EFF Senior Staff Attorney Matt Zimmerman. "USA Technologies might not appreciate the glare of such public criticism, but Internet users like 'stokklerk' have a right to post such criticism in a public forum."

The First Amendment protects the right to speak anonymously, especially about matters of public concern such as the performance of management of publicly traded companies. In addition, several state legislatures -- including California -- have passed laws to further protect individuals against lawsuits targeting them for exercising First Amendment rights. In its reply brief filed Friday, EFF underscores the problems with the USA Technologies lawsuit and asks the court to block attempts to enforce the Yahoo! subpoena.

For more information on attending Friday's hearing, contact press@eff.org.

For the full brief in support of the motion to quash the subpoena:
http://www.eff.org/files/filenode/usatechnologies/USAT-motiontoquashreply.pdf

For more on this case:
http://www.eff.org/cases/usa-technologies-v-stokklerk

Government Agencies Withholding Information on Data-Gathering from Facebook, Twitter, and Other Online Communities

San Francisco - The Electronic Frontier Foundation (EFF), working with the Samuelson Law, Technology, and Public Policy Clinic at the University of California, Berkeley, School of Law (Samuelson Clinic), filed suit today against a half-dozen government agencies for refusing to disclose their policies for using social networking sites for investigations, data-collection, and surveillance.

Recent news reports have publicized the government's use of social networking data as evidence in various investigations, and Congress is currently considering several pieces of legislation that may increase protections for consumers who use social-networking websites and other online tools. In response, the Samuelson Clinic made over a dozen Freedom of Information Act (FOIA) requests on behalf of EFF to the Central Intelligence Agency, the Department of Justice, the Department of Homeland Security, and other agencies, asking for information about how the government collects and uses this sensitive information.

"Millions of people use social networking sites like Facebook every day, disclosing lots of information about their private lives," said James Tucker, a student working with EFF through the Samuelson Clinic. "As Congress debates new privacy laws covering sites like Facebook, lawmakers and voters alike need to know how the government is already using this data and what is at stake."

When several agencies did not respond to the FOIA requests, the Samuelson Clinic filed suit on behalf of EFF. The lawsuit demands immediate processing and release of all records concerning policies for the use of social networking sites in government investigations.

"Internet users deserve to know what information is collected, under what circumstances, and who has access to it," said Shane Witnov, a law student also working on the case. "These agencies need to abide by the law and release their records on social networking surveillance."

For the full complaint:
http://www.eff.org/files/filenode/social_network/social_networking_FOIA_complaint_final.pdf

Anyone Can Track National Copyright Laws Globally with 'Copyright Watch'

San Francisco - The Electronic Frontier Foundation (EFF), Electronic Information for Libraries (eIFL.net), and other international copyright experts joined together today to launch Copyright Watch -- a public website created to centralize resources on national copyright laws at www.copyright-watch.org.

"Copyright laws are changing across the world, and it's hard to keep track of these changes, even for those whose daily work is affected by them," said Teresa Hackett, Program Manager at eIFL.net. "A law that is passed in one nation can quickly be taken up by others, bilateral trade agreements, regional policy initiatives, or international treaties. With Copyright Watch, people can learn about the similarities and differences in national copyright laws, and they can use that information to more easily spot patterns and emerging trends."

Copyright Watch is the first comprehensive and up-to-date online repository of national copyright laws. To find links to national and regional copyright laws, users can choose a continent or search using a country name. The site will be updated over time to include proposed amendments to laws, as well as commentary and context from national copyright experts. Copyright Watch will help document how legislators around the world are coping with the challenges of new technology and new business models.

"Balanced and well-calibrated copyright laws are extremely important in our global information society," said Gwen Hinze, International Policy Director at EFF. "Small shifts in the balance between the rights of copyright owners and the limitations and exceptions relied on by those who use copyrighted content can destroy or enable business models, criminalize or liberate free expression and everyday behavior, and support the development of new technologies that facilitate access to knowledge for all the world's citizens. We hope that Copyright Watch will encourage comparative research and help to highlight more and less flexible copyright regimes."

"Details of copyright law used to be important only for a few people in creative industries," added Danny O'Brien, International Outreach Coordinator at EFF. "But now, with the growth of the Internet and other digital tools, we are all authors, publishers, and sharers of copyrighted works. Copyright Watch was created so citizens of the world can share and compare information about their countries' laws."

Funding to create Copyright Watch was generously provided by the Open Society Institute.

Partial Document Release from Government Posted on EFF's Website

San Francisco, CA - Today the Electronic Frontier Foundation (EFF) posted thousands of pages of records detailing behind-the-scenes negotiations between government agencies and Congress about providing immunity for telecoms involved in illegal government surveillance.

The documents include drafts of legislation and communications between Congress and the Department of Justice (DOJ) and the Office of the Director of National Intelligence (ODNI) about amendments to the Foreign Intelligence Surveillance Act (FISA). They were released as a result of litigation that started back in 2007, when Congress first debated granting immunity to the telecommunications companies for taking part in massive, unchecked surveillance of Americans' telephone and Internet communications. EFF used the Freedom of Information Act (FOIA) to request information about communications between the DOJ, ODNI, Congress, and telecom lobbyists.

"The government has finally given up its battle to hide this information from the public and has released a significant portion of the records we've been fighting for," said EFF Staff Attorney Marcia Hofmann. "We hope that these files include some answers about what happened when the DOJ and ODNI pushed Congress to pass the law getting telecoms off the hook for their role in illegal government surveillance."

The government has said it will continue to try to block the release of additional documents, including communications within the Executive Branch and records reflecting the identities of telecoms involved in lobbying for immunity. The government's appeal will be heard before the 9th U.S. Circuit Court of Appeals in January 2010.

"This case isn't over yet -- there's still more information about the extensive lobbying campaign by the telecoms that helped them get immunity last year," said EFF Senior Staff Attorney Kurt Opsahl. "The government continues to hide important documents from the public."

Davis Wright Tremaine LLP Also Joins in Free Speech Fight

San Francisco - The Electronic Frontier Foundation (EFF) and Davis Wright Tremaine, LLP, will defend the Yes Men and other activists in a lawsuit filed against them by the U.S. Chamber of Commerce over political criticism of the Chamber's stance on climate change legislation.

In mid-October, the activists staged a "press conference" in which the Chamber of Commerce ostensibly reversed its position and promised to stop lobbying against strong climate change legislation -- a stance that has caused numerous Chamber members to leave the organization. As has been widely reported, before the press conference was even completed, a Chamber of Commerce representative rushed into the room and revealed that the Chamber's position on climate change legislation had not in fact changed.

"The action was a brilliant piece of political theater, but it had a serious purpose: calling attention to the Chamber's political activities," said EFF Senior Staff Attorney Corynne McSherry. "This is core political speech, protected by the First Amendment. We're very pleased that Davis Wright Tremaine -- with its long, successful history of protecting free speech rights of Americans -- has joined us in helping these activists battle a transparent attempt at censorship."

"U.S. courts have recognized that political parody lies at the heart of the First Amendment," said Davis Wright Tremaine LLP partner Bruce Johnson. "Even if the party parodied refuses to giggle--or even panics and sues--free speech will ultimately triumph. We look forward to a prompt dismissal of this case and a reaffirmation of the rights of all Americans to poke fun at the pompous and powerful."

The Chamber has pulled out all the stops in its effort to silence the activists. First, it sent an improper copyright takedown notice to the Yes Men's upstream provider, demanding that a parody website posted in support of the action be removed immediately and resulting in the temporary shutdown of not only the spoof site but hundreds of other sites hosted by May First/People Link. Next, the Chamber filed suit against the activists in federal court, claiming among other things the activism infringed their trademarks.

"Trademark rights do not encompass the right to silence criticism," said EFF Senior Staff Attorney Matt Zimmerman. "It is our hope that the Chamber will rethink its lawsuit and take a position more consistent with its past support of First Amendment rights."

A response to the Chamber's complaint is due later this month in the U.S. District Court for District of Columbia.

For more on this case:
http://www.eff.org/cases/chamber-commerce-v-servin

Join EFF in San Francisco Monday for Discussion on Hollywood vs. Consumers' Rights

San Francisco - Please join the Electronic Frontier Foundation (EFF) for a panel discussion on "The Future of DVD" at the Varnish Gallery in San Francisco on Monday, November 9, at 5:30 p.m.

Panelists include Kaleidescape CEO Michael Malcolm, Real Networks Vice President and General Counsel Bill Way, and EFF Senior Staff Attorney Fred von Lohmann. "The Future of DVD" will examine the legal battles over DVD rentals, ripping, backups, home media servers, and portable media players. The current legal battles involving RealDVD, Kaleidescape, and Redbox underscore the continuing struggle between Hollywood, consumers, and innovators over the future of the DVD.

"The Future of DVD" panel is free and open to the public, and includes a hosted bar. EFF would like to thank Real Networks for helping to make this event possible.

New Website Highlights Outrageous Attempts to Take Down Online Content

San Francisco - Websites like YouTube have ushered in a new era of creativity and free speech on the Internet, but not everyone is celebrating. Some of the web's most interesting content has been yanked from popular websites with bogus copyright claims or other spurious legal threats. So today the Electronic Frontier Foundation (EFF) is launching its "Takedown Hall of Shame" to call attention to particularly bogus takedowns — and showcase the amazing online videos and other creative works that someone doesn't want you to see.

"Free speech in the 21st century often depends on incorporating video clips and other content from various sources," explained EFF Senior Staff Attorney and Kahle Promise Fellow Corynne McSherry. "It's what The Daily Show with Jon Stewart does every night. This is 'fair use' of copyrighted or trademarked material and protected under U.S. law. But that hasn't stopped thin-skinned corporations and others from abusing the legal system to get these new works removed from the Internet. We wanted to document this censorship for all to see."

EFF's Takedown Hall of Shame at www.eff.org/takedowns focuses on the most egregious examples of takedown abuse, including an example of a YouTube video National Public Radio tried to remove just this week that criticizes same-sex marriage. Other Hall of Shame honorees include NBC for requesting removal of an Obama campaign video and CBS for targeting a McCain campaign video in the critical months before the 2008 election. The Hall of Shame will be updated regularly, as bad takedowns continue to squash free speech rights of artists, critics, and commentators big and small.

Many of the bogus takedowns come from misuse of the Digital Millennium Copyright Act (DMCA). Under the DMCA, claimants can demand that material be removed immediately without providing any proof of infringement. Service providers, fearful of monetary damages and legal hassles, often comply with these requests without double-checking them, despite the cost to free speech and individual rights.

"The DMCA encourages a 'take down first, ask questions later' approach, creating an unfair hurdle to free speech," said EFF Activist Richard Esguerra. "People who abuse this law to silence critics should be shamed publicly, and that's what we're aiming to do."

The Takedown Hall of Shame is part of EFF's No Downtime for Free Speech Campaign, which works to protect online expression in the face of baseless intellectual property claims.

For EFF's Takedown Hall of Shame:
http://www.eff.org/takedowns

For EFF's No Downtime for Free Speech Campaign:
http://www.eff.org/issues/ip-and-free-speech

Business Group Tries to Take Down Parody Site After Embarrassing Prank

San Francisco - Attorneys for the U.S. Chamber of Commerce have issued a takedown notice in an attempt to silence a parody website that was posted in support of the Yes Men's embarrassing prank poking fun at the Chamber's stance on climate change legislation.

In a letter sent to the Chamber's attorneys today, the Electronic Frontier Foundation (EFF) demands that the baseless claims be withdrawn immediately.

"We are very disappointed the Chamber of Commerce decided to respond to political criticism with legal threats," said EFF Staff Attorney Corynne McSherry. "The site is obviously intended to highlight and parody the Chamber's controversial views, which have sparked political debate and led high-profile members to withdraw their support from the Chamber."

The effort to take down the website -- currently located at www.chamber-of-commerce.us -- comes on the heels of a Yes Men prank that made international news this week. The group put out a press release and held a spoof news conference on Monday, claiming that the Chamber of Commerce had reversed its position and would stop lobbying against a climate bill currently in the Senate. Several news outlets reported the story before determining it was a prank.

Yesterday afternoon, attorneys for the Chamber sent a Digital Millennium Copyright Act (DMCA) takedown notice to the site's upstream provider, Hurricane Electric Internet Services, claiming that the site constituted copyright infringement and demanding that the site be shut down immediately and that the creator's service be canceled.

"Parody is a well-established right, protected under copyright law and the First Amendment," said EFF Senior Staff Attorney Matt Zimmerman. "Hopefully, the Chamber will reconsider its position and realize that such strong-arm tactics are inappropriate and counter-productive."

For the full text of the letter:
http://www.eff.org/files/filenode/ip_freespeech/yesmenletter.pdf

For the full text of the DMCA takedown notice:
http://www.eff.org/files/chamber-dmca-notice.pdf

San Francisco - The Electronic Frontier Foundation (EFF) is challenging a dangerous patent on voice-over-Internet protocol (VoIP) that could cripple the adoption of new VoIP technologies.

A communications company named Acceris was awarded this illegitimate patent for hardware, software, and processes for implementing VoIP using analog telephones as endpoints -- covering many telephone calls made over the Internet. But in a reexamination request filed today with the United States Patent and Trademark Office (USPTO), EFF and the law firm Fenwick & West LLP show that a prior patent as well as published reference material both describe the underlying technology well before Acceris made its claim.

"Bogus patents like this one highlight the problems with our current patent system," said EFF Legal Director Cindy Cohn. "Patenting technology that is an obvious combination of well understood technological conventions opens the door to lawsuits against legitimate innovators who are creating new VoIP products in good faith."

"The overly broad claims in Acceris's patent are stifling innovation and creating uncertainty in the important field of Internet telephony," said Nikhil Iyengar of Fenwick &West. "We are confident that the Patent Office will carefully review the arguments we have presented in our reexamination request."

The challenge to the Acceris patent is part of EFF's Patent Busting Project, which combats the chilling effects of bad patents on the public and consumer interests. So far, seven patents targeted by EFF have been busted, invalidated, narrowed, or had a reexamination granted by the Patent Office.

Mersenne.org Wins EFF's Cooperative Computing Award

San Francisco - A worldwide volunteer computing project called the Great Internet Mersenne Prime Search (GIMPS) has discovered a 12-million-digit prime number, netting $100,000 and a Cooperative Computing Award from the Electronic Frontier Foundation (EFF) for discovering a prime number of over 10 million digits.

The GIMPS PrimeNet network made the discovery on a computer at the University of California, Los Angeles (UCLA) Mathematics Department. Computing manager Edson Smith installed and maintained the GIMPS software at UCLA, and thousands of other volunteers also participated in the search process. The discovery was hailed by Time magazine as the 29th top invention of 2008.

"Thousands of people and organizations all over the world are part of GIMPS, and discovering this prime number shows how just powerful cooperative computing can be," said PrimeNet's creator, Scott Kurowski.

"We're grateful to the UCLA Mathematics Department for providing its computational resources to the project," said GIMPS founder George Woltman.

The $100,000 prize will be awarded during EFF's Pioneer Awards ceremony on October 22nd at the Westin San Francisco in conjunction with the Web 2.0 Summit, co-produced by O'Reilly and TechWeb.

The winning number is the 45th known Mersenne prime, written shorthand as 2 to the power of 43,112,609, minus 1. A Mersenne number is a positive integer that is one less than a power of two. The GIMPS discovery was announced in the Fibonacci Quarterly journal in August of this year; it is the largest prime number ever discovered.

"Computers sit idle much of the time, waiting for their users do something," said Landon Curt Noll, a mathematician, astronomer, and Cisco employee who serves as the Chair of the EFF Cooperative Computing Award advisory panel. "With EFF's Cooperative Computing Awards, we aim to encourage researchers to pool their computing over the Internet and work together to share resources to solve important problems, fostering new technologies and opportunities for everyone."

GIMPS says it will give $50,000 of the award to the UCLA Mathematics Department and donate $25,000 to charity. The remainder will fund its ongoing research and awards for participants discovering new Mersenne primes.

EFF's first Cooperative Computing Award, given for a prime number of at least a million digits, was awarded nearly 10 years ago, also to a GIMPS participant. Two Cooperative Computing Awards are still up for grabs: EFF will award $150,000 to the first individual or group who discovers a prime with at least 100 million digits, and $250,000 for a prime with at least a billion digits. Prize money comes from a special donation from an individual EFF supporter, earmarked specifically for the project.

Tickets to the Pioneer Awards ceremony are $60 through Friday, October 16, and $80 afterwards. Advance tickets are available at http://action.eff.org/pioneerfundraiser. Members of the media interested in attending should email press@eff.org.

For more on the Cooperative Computing Awards:
http://www.eff.org/awards/coop

For more on the Pioneer Awards:
http://www.eff.org/awards/pioneer

For more on the Great Internet Mersenne Prime Search:
http://www.mersenne.org/

TI's calculators perform a "signature check" that allows only approved operating systems to be loaded onto the hardware. But researchers were able to reverse-engineer signing keys, allowing tinkers to install custom operating systems and unlock new functionality in the calculators' hardware. In response to this discovery, TI unleashed a torrent of demand letters claiming that the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) required the hobbyists to take down commentary about and links to the keys. EFF represents three men who received such letters.

"The DMCA should not be abused to censor online discussion by people who are behaving perfectly legally," said Tom Cross, who blogs at memestreams.net. "It's legal to engage in reverse engineering, and its legal to talk about reverse engineering."

In fact, the DMCA explicitly allows reverse engineering to create interoperable custom software like the programs the hobbyists are using. Additionally, TI makes its software freely available on its website, so there is no connection between the use of the keys and unauthorized distribution of the code.

"This is not about copyright infringement. This is about running your own software on your own device -- a calculator you legally bought," said EFF Civil Liberties Director Jennifer Granick. "Yet TI still issued empty legal threats in an attempt to shut down discussion of this legitimate tinkering. Hobbyists are taking their own tools and making them better, in the best tradition of American innovation."

For the full letters sent to Texas Instruments by EFF on behalf of their clients:
http://www.eff.org/files/filenode/coders/TI%20Claim%20Ltr%20101309.pdf

The award ceremony will be held at 7 p.m., October 22nd, at the Westin San Francisco in conjunction with the Web 2.0 Summit, co-produced by O'Reilly and TechWeb. LinkedIn founder Reid Hoffmann will keynote the event.

Limor "Ladyada" Fried is a pioneer in the field of open-source hardware and software hacking, helping the general public to engineer and adapt consumer electronics to better suit their needs. Her do-it-yourself ethic is founded on the idea that consumer electronics are best modified for use by customers, not corporations. Fried runs her own company, Adafruit Industries, which sells unique and fun do-it-yourself kits to help consumers make gadgets such as backup iPod chargers, green power monitors, and programmable displays for bicycle wheels. She also hosts an Internet video program called "Citizen Engineer" that provides step-by-step instructions to help consumers build and alter their own home devices.

Harri Hursti discovered gaping vulnerabilities in the widely used optical scan voting machines manufactured by Diebold Election Systems in 2005, in collaboration with the Leon County, Florida, Supervisor of Elections and elections watchdog group BBV. The "Hursti Hack," as his breakthrough became known, brought about far-reaching scrutiny of voting machine hardware and software. Research conducted in other states confirmed numerous systematic flaws and led to the decertification of thousands of faulty voting machines. Hursti is currently Chief Technical Officer of the Clear Ballot Group, a Boston company that builds tools to rigorously and transparently verify election results.

Carl Malamud is a technologist, author, and public domain advocate, currently known for his foundation, public.resource.org. As founder of the Internet Multicasting Service, Malamud was responsible for creating the first Internet radio station, for putting the U.S. Securities and Exchange Commission's EDGAR database on-line, and for creating the Internet 1996 World Exposition. Malamud is the author of eight books, including "Exploring the Internet" and "A World's Fair." He was a visiting professor at the MIT Media Laboratory and is the former chairman of the Internet Software Consortium.

"The Pioneer Award winners this year have empowered all of us as consumers, voters, and citizens, making sure that advances in technology enhance our lives instead of hemming us in," said EFF Executive Director Shari Steele. "We're proud to honor Limor, Harri, and Carl for the invaluable contributions they have made to our digital world."

Awarded every year since 1992, the Pioneer Awards recognize leaders who are extending freedom and innovation on the electronic frontier. Past honorees include World Wide Web inventor Tim Berners-Lee, Linux creator Linus Torvalds, and the Mozilla Foundation and its chairman Mitchell Baker, among many others.

Each year, candidates are nominated by the public with winners chosen by a panel of judges. This year's panel includes Kim Alexander (President and founder, California Voter Foundation), Cory Doctorow (award-winning author and activist), Mitch Kapor (President, Kapor Enterprises and co-founder and former chairman of EFF), Drazen Pantic (Co-director, Location One), Barbara Simons (IBM Research [Retired] and former president ACM), and James Tyre (Co-founder, The Censorware Project and EFF policy fellow).

Pioneer Awards keynoter Reid Hoffman is Executive Chairman and a co-founder of LinkedIn. Previously, Hoffman was Executive Vice President of PayPal and has also held management roles at Fujitsu Software Corporation and Apple. Hoffman serves on the Board of Directors for SixApart, Kiva.org, and the Mozilla Corporation. Sponsors of the Pioneer Awards ceremony include MetroPCS, eBay, Microsoft, SaurikIT and Facebook.

Tickets to the Pioneer Awards ceremony are $60 through Friday October 16, and $80 afterwards. You can buy your tickets in advance at http://action.eff.org/pioneerfundraiser. Members of the media interested in attending should email press@eff.org.

For more information about the Pioneer Awards:
http://www.eff.org/awards/pioneer

Government Must Provide More Information on Campaign to Give Telecoms Retroactive Immunity

San Francisco - A judge ordered the government Thursday to release more records about the lobbying campaign to provide immunity to the telecommunications giants that participated in the NSA's warrantless surveillance program. U.S. District Judge Jeffrey S. White ordered the records be provided to the Electronic Frontier Foundation (EFF) by October 9, 2009.

The decision is part of EFF's long-running battle to gather information about telecommunications lobbying conducted as Congress considered granting immunity to companies that participated in illegal government electronic surveillance. Telecom immunity was eventually passed as part of the FISA Amendments Act (FAA) of 2008, but a bill that would repeal the immunity -- called the JUSTICE Act -- was introduced in the Senate last week.

"Today's ruling is a major victory for government transparency," said EFF Staff Attorney Marcia Hofmann. "As the court recognized, it was unlawful for the government to deny Americans access to this information in the midst of the debate over telecom immunity last year. We're pleased these records will now be available to the public as Congress considers the JUSTICE Act."

EFF has been seeking information about the telecom lobbying campaign under the Freedom of Information Act (FOIA) since 2007, as news reports detailed an extensive and expensive lobbying campaign seeking immunity for telecommunications companies that participated in unlawful surveillance of millions of ordinary Americans. Officials at the Bush Administration's Department of Justice (DOJ) and Office of the Director of National Intelligence (ODNI) were vocal supporters of the immunity proposals, working closely with telecoms. Using the FOIA, EFF asked the DOJ and the ODNI for any communications between the agencies, members of Congress, and telecom companies related to lobbying for telecom immunity.

The DOJ and ODNI argued that the records requested by EFF were protected by FOIA exemptions covering agency deliberations and other privileged communications. But in today's order, the judge ruled that as the communications were with Congress and lobbyists, the exemptions did not apply. The judge also found that the identities of telecom representatives who lobbied for immunity could not be kept from the public on privacy grounds.

"Today's ruling shows that aggressive use of the Freedom of Information Act is necessary to challenge government secrecy," said EFF Senior Staff Attorney Kurt Opsahl. "We cannot allow the government to drag its feet in making relevant information available to the American public."

EFF also represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecom of violating their rights by illegally assisting in widespread domestic surveillance. In June of 2009, a federal judge dismissed Hepting and dozens of other lawsuits against telecoms, ruling that the companies had immunity from liability under the FAA. EFF is appealing the decision to the 9th U.S. Circuit Court of Appeals, primarily arguing that the FAA's immunity provision is unconstitutional in granting the president broad discretion to block the courts from considering the core constitutional privacy claims of millions of Americans.

For the full order:
http://www.eff.org/files/filenode/foia_C0705278/OrderGrantSJ-Sep09.pdf

For more on the litigation:
http://www.eff.org/issues/foia/cases/C-07-05278

For more on the JUSTICE Act:
http://www.eff.org/deeplinks/2009/09/eff-supports-justice

Ability to Track Readers Puts Privacy at Risk

New York - A coalition of authors and publishers—including best-sellers Michael Chabon, Jonathan Lethem, and technical author Bruce Schneier—is urging a federal judge to reject the proposed settlement in a lawsuit over Google Book Search, arguing that the sweeping agreement to digitize millions of books ignores critical privacy rights for readers and writers.

The group of more than two dozen authors and publishers, represented by the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), and the Samuelson Law, Technology, and Public Policy Clinic at the University of California, Berkeley, School of Law (Samuelson clinic), filed an objection to the settlement today. The coalition is concerned that Google’s collection of personal identifying information about users who browse, read, and make purchases online at Google Book Search will chill their readership.

"Google Book Search and other digital book projects will redefine the way people read and research," said Lethem, winner of a National Book Critics Circle Award. "Now is the moment to make sure that Google Book Search is as private as the world of physical books. If future readers know that they are leaving a digital trail for others to follow, they may shy away from important intellectual journeys."

The settlement, currently pending approval from a New York federal district court, would end the legal challenges brought by the Authors' Guild over the Google Book Search project. It would give Google the green light to scan and digitize millions of books and allow users to search for and read those books online. However, Google’s system could monitor what books users search for, how much of the books they read, and how long they spend on various pages. Google could then combine information about readers’ habits and interests with additional information it collects from other Google services, creating a massive "digital dossier" that would be vulnerable to fishing expeditions by law enforcement or civil litigants.

"I believe that the fear of tracking will create a chilling effect on my readers and reduce my readership, and therefore my revenue, from these books," said Schneier, a computer security expert. "Moreover, I write these books in order to participate in the public debate on security issues. Reduced readership negatively impacts my expressive interests as an author."

In the objection filed today, the coalition asks the court to require Google to create a robust privacy policy that gives readers as much privacy in online books as they have in a library or a bookstore and to ensure that the policy is enforceable and overseen by the court on an ongoing basis. The authors and publishers present a list of privacy protections that would improve the settlement, including limiting tracking of users by requiring a court order or judge-approved warrant before disclosure of the information collected, ensuring user control of personal information stored by Google, and making the system transparent to readers. After much pressure from EFF, ACLU, the Samuelson clinic, and others, Google finally issued a privacy policy for Google Books on September 3, 2009. However, that policy doesn’t guarantee that Google will require court approval before disclosing reader information, and it doesn’t sufficiently limit Google’s retention of that information. It is also changeable by Google at any time.

A hearing on the fairness of the proposed Google Book Search settlement is set for October 7, 2009, in New York.

EFF Battles Heavy-Handed Tactics Threatening Free Speech

Chicago - The Electronic Frontier Foundation (EFF) has asked an Illinois Circuit Court judge to quash subpoenas aimed at outing opponents of a controversial city project.

In December, local residents filed a lawsuit in state court against the city of Chicago and local developers, challenging the legality of a development project in the city's Uptown neighborhood. In response, the "Wilson Yard Defendants," six firms associated with Chicago developer Peter Holsten, issued subpoenas directing Google and a local neighborhood association to unmask anonymous online critics who had discussed either the project or Alderman Helen Shiller, the primary governmental sponsor of the project.

EFF and co-counsel Charles Mudd Jr. obtained a temporary order protecting the anonymous speakers in July, while the defendants asked that the court wait to consider whether to dismiss the subpoenas until after the plaintiffs filed an amended complaint. With the amended complaint now filed, providing no support for the subpoenas, EFF and Mudd have moved to quash the subpoenas outright.

"The right to speak anonymously is a fundamental element of the First Amendment. Individuals need to know that they can express their views, and do so without fear of legal reprisal," said EFF Staff Attorney Matt Zimmerman. "Efforts to target critics of government-sponsored activity are precisely what the First Amendment is designed to prevent."

While anonymous online speakers can be unmasked in certain narrow circumstances, none of them apply in this case. In a motion to quash the subpoenas filed Friday, EFF argues that the identities of the critics have no bearing on issue before the court -- a lawsuit that concerns land-use ordinances. EFF has repeatedly tried to resolve the matter with the developer's attorneys but to no avail.

"Enough is enough," said Zimmerman. "The defendants are demonstrating a callous disregard for the First Amendment and cannot be allowed to abuse the judicial process any longer."

The sites targeted by the subpoena to Google were community websites "Uptown Update" (www.uptownupdate.com) and "What the Helen" (defunct since 2007). Also targeted with a separate subpoena was non-profit neighborhood association Buena Park Neighbors (www.buenaparkneighbors.org).

For the full motion to quash the subpoenas:
http://www.eff.org/files/filenode/fix_wilson_yard/FIXWILSONYARD92109.pdf

On Locational Privacy, And How to Avoid Losing it Forever

San Francisco - Innovative new technologies can make it easier to pay your bridge toll or bus fare, to search for nearby businesses from your cell phone, and to get in and out of secure areas with a card instead of a key. But these systems also pose a dramatic threat to locational privacy -- your ability to move in public spaces without the systematic recording of where you are and when you are there.

In a report released today, the Electronic Frontier Foundation (EFF) documents how your location information is collected by various popular electronic devices and services, and argues for concrete technological solutions that would allow you to enjoy these systems' benefits without sacrificing your privacy in your everyday life.

"There are nifty new location-based technologies like electronic road-toll tags and cell-phone apps that alert you when your friends are nearby -- but these systems often create and store records of your movements," said EFF Staff Technologist Peter Eckersley, one of the co-writers of the white paper. "This could make it possible for others to know when you visited a health clinic, what church or bar you spend time in, or who you go to lunch with. It is essential that privacy-protecting algorithms are built into these devices and services, so we can enjoy their convenience without making our private lives into open books."

Systems that track people's movements are gaining in popularity, and over the next decade, it's likely that these technologies will be indelibly woven into the fabric of everyday life. The report tackles specific services in use today, and details encryption strategies and designs that would protect sensitive location information.

"The technical solution to preserving privacy in digital services lies in modern cryptography and careful design," said Stanford University mathematician Andrew J. Blumberg, the white paper's other co-writer. "It may seem counterintuitive, but using cryptography, these systems can function without collecting and storing personal data at all. The best way for systems to protect user data is not to collect it in the first place; then the information is not available for anyone to buy, steal, or obtain by subpoena -- it would stay truly private."

For the full white paper "On Locational Privacy, and How to Avoid Losing it Forever":
http://www.eff.org/wp/locational-privacy

Free Speech Vindicated, EFF Dismisses Suit

San Francisco - Apple has retracted its legal threats against public wiki hosting site Bluwiki, and, in response, EFF is dismissing its lawsuit against Apple over those threats. The skirmish involved a set of anonymously authored wiki pages in which hobbyists were discussing how to "sync" media to iPods and iPhones using music library playback software other than Apple's own iTunes.

In November 2008, Apple sent a series of legal threats to the operator of Bluwiki, alleging that these hobbyist discussions about interoperability violated copyright law and constituted a violation of the Digital Millennium Copyright Act (DMCA), even though the author(s) of the pages had not yet figured out how to accomplish their goal. In response to Apple's legal threats, Bluwiki took down the wiki pages in question. In April 2009, EFF and the San Francisco law firm Keker & Van Nest sued Apple on behalf of OdioWorks, which runs Bluwiki, asking a court to reject Apple's claims and allow Bluwiki to restore the discussions.

On July 8, 2009, Apple sent letter withdrawing its cease-and-desist demands and stating that "Apple no longer has, nor will it have in the future, any objection to the publication of the iTunesDB Pages." As a result, EFF has moved to dismiss its complaint against Apple.

"While we are glad that Apple retracted its baseless legal threats, we are disappointed that it only came after 7 months of censorship and a lawsuit," said EFF Senior Staff Attorney Fred von Lohmann. "Because Apple continues to use technical measures to lock iPod Touch and iPhone owners into -- and Palm Pre owners out of -- using Apple's iTunes software, I wouldn't be surprised if there are more discussions among frustrated customers about reverse engineering Apple products. We hope Apple has learned its lesson here and will give those online discussions a wide berth in the future."

For more details:
http://www.eff.org/deeplinks/2009/07/apple-backs-down-blu

For more information about OdioWorks v. Apple:
http://www.eff.org/cases/odioworks-v-apple

Lawsuit Seeks Public Disclosure of Oversight Records Amidst New Questions About Accountability

San Francisco - The Electronic Frontier Foundation (EFF) filed suit today against the Central Intelligence Agency (CIA) and a half-dozen other federal agencies involved in intelligence gathering, demanding the immediate release of reports about potential misconduct. EFF filed suit under the Freedom of Information Act (FOIA), requesting records of intelligence agencies' reporting of activities since 2001 that might have been unlawful or contrary to presidential order.

"By executive order, federal intelligence agencies must submit concerns about potentially illegal activity to the Intelligence Oversight Board and the Office of the Director of National Intelligence," said EFF Open Government Legal Fellow Nate Cardozo. "Intelligence agencies are given a wide berth for national security reasons, but at a minimum they're required to act within the limits of the law. These records hold important details about how well the Executive Branch's internal checks operate."

The members of the Intelligence Oversight Board were appointed by the president to advise on intelligence matters. Until last year, all intelligence agencies were required to report to the board "any intelligence activities of their organizations that they have reason to believe may be unlawful or contrary to Executive order or Presidential directive." The board was tasked with reviewing those reports, summarizing them, and forwarding to the president those that it believed described violations of the law. Last year, President Bush reassigned many of these responsibilities, including reviewing agency reports, to the Director of National Intelligence.

A storm of media coverage following this month's disclosure that the CIA chose to keep Congress in the dark about a plan to train anti-terrorist assassin teams has brought the lack of transparency in intelligence reporting to a head. Lawmakers have accused the CIA of deliberately misleading Congress and are calling for an investigation into officials' conduct. The reports the agencies have provided to the Intelligence Oversight Board undoubtedly contain information that will shed some light on incidents such as this -- information that is necessary in order to provide appropriate oversight.

In addition to the CIA, EFF's lawsuit names the Department of Homeland Security, the National Security Agency, the Department of Defense, the Department of Justice (including the FBI), the Office of the Director of National Intelligence, the Department of Energy, and the Department of State -- all of which failed to comply with FOIA requests seeking records and reports of concerns about intelligence activity that might have stepped over the bounds of the law.

"The CIA is not the only agency that has faced questions about the legality of its intelligence programs," said EFF Staff Attorney Marcia Hofmann. "Electronic surveillance and other intelligence activities have come under increasing scrutiny during the past several years. We're seeking information that will shed light on incidents of intelligence misconduct, how often they happen, and how effective oversight is for controversial programs. The agencies must follow the law and release these records to the public."

For the full complaint:
http://www.eff.org/files/filenode/intel_oversight/IOB.FOIA.Complaint.pdf

San Francisco - The Electronic Frontier Foundation (EFF) released "Surveillance Self-Defense International" (SSDI) today, a practical guide to help activists from around the world use the Internet safely under repressive regimes. It is available at: http://www.eff.org/wp/surveillance-self-defense-international.

Recent political protests in Iran, China, and elsewhere have demonstrated the enormous power of the Internet for organizing protests and reporting events to the world. But governments have also used the Internet to track, harass, and undermine. SSDI urges activists to consider the risks in using various technologies and outlines strategies that can allow protestors to continue to use the Internet safely.

"The Internet remains a powerful way to give voice to repressed people around the world," said EFF Staff Technologist Peter Eckersley. "But with increasingly prevalent government censorship and surveillance, citizens seeking free expression must consider the risks and make careful decisions about how they use the Internet. Surveillance Self-Defense International can help them make those decisions well."

Individuals outside of repressive regimes can also read the guide to find ideas for remotely assisting others in circumventing censorship and speaking out anonymously on the Internet. Shortly after the contested Iranian election, many activists sought advice on using their computers to set up proxies or Tor nodes to help Iranian citizens access the web.

"Surveillance Self-Defense International isn't just about what to do when facing down surveillance and censorship in your own country," said Danny O'Brien, EFF's International Outreach Coordinator. "It's about what ordinary Net users can do to help protect others. Whoever you are, and wherever you are, you can help keep the Net safe for free speech."

SSDI is an offshoot of EFF's Surveillance Self-Defense manual, an online how-to guide for protecting private data against government spying in the U.S. SSDI reflects the fact that the best strategies to achieve privacy are very different for people in the U.S. and people living elsewhere, sometimes under authoritarian regimes.

EFF Faces Off Against Obama Administration in Jewel v. NSA

San Francisco - On Wednesday, July 15, at 10:30 a.m., a federal judge in San Francisco will hear arguments in the government's motion to dismiss Jewel v. NSA, a case from the Electronic Frontier Foundation (EFF) challenging dragnet government surveillance of millions of ordinary Americans.

The Justice Department moved to dismiss the case in April, arguing that litigation over the warrantless wiretapping program would require the government to disclose privileged "state secrets" -- essentially repeating the arguments made by the Bush Administration in its attempts to block lawsuits over the illegal spying. The Justice Department also claims that the U.S. possesses "sovereign immunity" and cannot be held accountable for illegal surveillance under any federal statutes.

In Wednesday's hearing, EFF will argue that the lawsuit cannot be dismissed based on the government's blanket secrecy assertion, as made clear in previous court decisions concerning NSA spying and the CIA's special rendition program, and that the government is not immune against suit for violating federal wiretapping statutes.

For more information about attending the hearing, please contact press@eff.org.

EFF Argues Phones Ringing in Public Do Not Violate Copyright Law

New York - The Electronic Frontier Foundation (EFF) urged a federal court Wednesday to reject bogus copyright claims in a ringtone royalty battle that could raise costs for consumers, jeopardize consumer rights, and curtail new technological innovation.

Millions of Americans have bought musical ringtones, often clips from favorite popular songs, for their mobile phones. Mobile phone carriers pay royalties to song owners for the right to sell these snippets to their customers. But as part of a ploy to squeeze more money out of the mobile phone companies, the American Society of Composers, Authors, and Publishers (ASCAP) has told a federal court that each time a phone rings in a public place, the phone user has violated copyright law. Therefore, ASCAP argues, phone carriers must pay additional royalties or face legal liability for contributing to what they claim is cell phone users' copyright infringement. In an amicus brief filed Wednesday, EFF points out that copyright law does not reach public performances "without any purpose of direct or indirect commercial advantage" -- clearly the case with cell phone ringtones. If phone users are not infringing copyright law, then mobile phone service providers are not contributing to any infringement.

"This is an outlandish argument from ASCAP," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Are the millions of people who have bought ringtones breaking the law if they forget to silence their phones in a restaurant? Under this reasoning from ASCAP, it would be a copyright violation for you to play your car radio with the window down!"

ASCAP has responded by saying that it does not plan to charge mobile phone users, just mobile phone service providers. But if ASCAP prevails, consumers could find themselves targeted by other copyright owners for "public performances." Worse, these wrongheaded legal claims cast a shadow over innovators who are building gadgets that help consumers get the most from their copyright privileges.

"Because it is legal for consumers to play music in public, it's also legal for my mobile phone carrier to sell me a ringtone and a phone to do it," said von Lohmann. "Otherwise it would be illegal to sell all kinds of technologies that help us enjoy our fair use, first sale, and other copyright privileges."

The Center for Democracy and Technology and Public Knowledge also joined the EFF brief.

For the full amicus brief:
http://www.eff.org/files/filenode/US_v_ASCAP/US%20v%20ASCAP%20EFF%20ATT%20Brief.pdf